Faculty differs on constitutionality of gun laws

The Second Amendment to the United States Constitution is one of the most vexing parts included in the Bill of Rights. The longtime, heated debate on its meaning may be more important than ever following pushes for new gun regulation through legislation in response to the Sandy Hook tragedy.

Susan Hamill, a professor at The University of Alabama School of Law, said she advocated responsible gun control measures and used the Constitution as a basis for her views during her 2010 campaign for state legislature against current Republican representative Bill Poole.

“I am in favor of reasonable gun control, addressing both the kinds of guns and registration and background checks,” Hamill said. “I do not believe a ban on assault weapons would be unconstitutional. I also think it is constitutional to require background checks and registration.”

Brannon Denning, a professor at the Cumberland School of Law at Samford University, worked at Yale Law School and edited a book dealing with gun control issues. Unlike Hamill, he said he wasn’t so sure of the constitutionality of an assault weapons ban. Everything, he said, would depend on what the legislation said.

“A broad ban on ordinary guns that law-abiding citizens use for hunting and recreation would be on thin ice as far as passing constitutional muster,” Hamill said. “I don’t think such a ban would ever get past Congress or any state legislature, so the question would never come up.”

(See also "Gauging the good of guns")

Denning also said a potential assault weapons ban would be further complicated, as he claims the government would have to exempt large numbers of commonly-owned guns that may technically meet the definition.

“An ‘assault weapons ban’ basically outlaws scary-looking guns; if you put a bayonet lug and a flash suppressor on a Remington 1100, which is a common semi-automatic shotgun, you have an ‘assault weapon’ by some definitions,” Denning said. “They aren’t automatic weapons [which are illegal to possess], and they aren’t ‘machine guns.’ They aren’t used in a large number of crimes – handguns are.”

In 2008, the Supreme Court issued a landmark decision in District of Columbia v. Heller. In a five-to-four decision, the court struck down Washington D.C.’s handgun ban and articulated for the first time that the Second Amendment guarantees an individual’s right to own a gun for self-defense, according to a Washington Post report.

Justice Antonin Scalia, a leading conservative thinker on the court, said in the majority opinion, “We hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.”

In a dissenting opinion, Justice Stephen Breyer, a more liberal member of the court said, “The decision threatens to throw into doubt the constitutionality of gun laws throughout the United States.”

Paul Horwitz, a constitutional law professor at the Capstone, said the constitutionality of an assault weapons ban would hinge on the details of the proposed legislation. However, he was skeptical of the Heller decision.

“I think the Heller opinion is a strained historical reading and does not give adequate attention to the preamble of the Second Amendment,” Horwitz said. “It doesn’t come out in an outrageous place, but I’m not totally convinced by it.”

Denning said before Heller, much of the debate centered around whether the Second Amendment worked in the same way as the protection of speech in the First Amendment and guaranteed an “individual” right, or protected a “collective” right of states to have armed militias.

“Heller settled that,” Denning said. “Even the dissenting justices agreed that the amendment guaranteed an individual right.”

Denning also said he thinks the original purpose of the Second Amendment was to secure the right of individuals to own firearms both to secure the means for individual self-defense, as well as creating a body of armed citizens capable of collective self-defense.

“As our military and police forces have become more professionalized, the collective self-defense rationale has tended to fall off. But, as the Supreme Court recognized in Heller and again in McDonald, individual self-defense is still a valid rationale for wanting to have firearms,” Denning said. “Interestingly, the association of the Second Amendment’s right to keep and bear arms with self-defense is not new. The framers of the Fourteenth Amendment specifically referred to the need for newly freed slaves to have the right protected against state interference in order to protect themselves from insurgent violence in the South.”

Horwitz said whatever the Second Amendment was originally meant to do, it has become an important part of American life.

“Whatever it said at the outset, certainly it’s become a part of our cultural heritage,” Horwitz said.

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